Legal experts say the president’s lawyers may be pushing ethical boundaries by communicating with people involved in the Mueller probe.
Donald Trump’s lawyers have maintained an unusual level of contact with attorneys representing clients caught up in the expanding Russia probe, communication that could taint evidence that special counsel Robert Mueller is collecting in his investigation of the president.
They’re not being shy about it either.
The president’s attorneys talk openly about these “joint defense agreements” that they say were established to keep them connected with lawyers tied to the president’s aides, allies and associates. They took the lead in organizing weekly conference calls earlier this year to strategize with other counsel during an intense period of Mueller’s investigation. In total, Trump’s lawyers have publicly noted they have more than 30 so-called JDAs with Mueller probe targets. Under these agreements, Trump’s attorneys can seek details on everything from what questions and documents Mueller’s team is asking about to who’s on the verge of criminal indictment.
The arrangement itself is routine for complex investigations where scores of people get drawn in as witnesses, subjects and even targets. Staying in touch through formalized JDAs is a way to share information under the protection of attorney-client privilege.
But the Trump team’s use of JDAs has pushed legal boundaries, especially in the instances where the president’s lawyers claim to have maintained these relationships with defense teams representing Mueller targets who have flipped to cooperate with the Russia probe.
For legal experts, it’s an approach in line with the team’s broader strategy to ignore well-established norms, whether through campaign-style attacks on the special counsel or blunt, public assessments of Mueller’s movements.
“This president is mounting a full-court defensive press and is not particularly concerned with the optics of anything,” said a white-collar lawyer who represents a senior Trump official in the Russia investigation.
Such cooperation deals usually signal the end of JDAs with others involved in the investigation, similar to how Flynn cut off his arrangement shortly before agreeing to cooperate. According to Giuliani, though, Trump’s attorneys have maintained contact with Manafort’s lawyers throughout the Mueller investigation, including during his high-profile trial in Alexandria, Va., and in the days leading up to and after Manafort made his decision to plead guilty in mid-September.
The Trump-Manafort JDA isn’t the only arrangement that has raised eyebrows among legal experts. Giuliani said Trump’s team is still in contact with lawyers for Allen Weisselberg, the longtime accountant for the president’s family and chief financial officer at the Trump Organization. Federal prosecutors granted Weisselberg immunity in exchange for his testimony in the Cohen investigation, but Giuliani said even that move doesn’t undercut the legal arrangement with the president’s lawyers.
“Allen is not someone who is cooperating,” Giuliani said.
Legal experts say they’re perplexed by Giuliani’s public insistence that JDAs still exist for people known to be talking with federal prosecutors — a practice they say verges on unethical. Such arrangements are also almost guaranteed to raise the ire of Mueller, as prosecutors typically only strike cooperation deals with defendants on the condition that they withdraw from any joint defense setup.
But Giuliani’s comments also could be seen as a warning that the president’s lawyers are primed to challenge Mueller’s authority to use some of the evidence collected from Manafort — or other cooperating witnesses — through JDAs, as the bulk of information shared in this manner is supposed to be covered by attorney-client privileges.
That means Trump’s lawyers could try and block Mueller from using evidence in court if they believe the details were gleaned from attorneys operating under the terms of a JDA.
The special counsel’s team does have plenty of room to maneuver, though. For starters, JDAs don’t cover facts a witness knows independent of a JDA. And while information Manafort shared with Trump under the JDA is privileged, the former campaign chairman can also waive that right if he wants to share the information with prosecutors.
Outside of the courtroom, a different standard applies. For instance, Trump’s lawyers can’t stop Mueller from putting the evidence a witness gleaned under a JDA into a report to Congress — the more likely forum for Mueller’s findings, given indications that his team won’t indict a sitting president.
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